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People v. Dykes

OPINION FILED OCTOBER 31, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOHN DYKES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. VINCENT W. TONDRYK, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Defendant, John Dykes, was found guilty in a jury trial of rape, aggravated incest and indecent liberties with a child and was sentenced to a term of from 10 to 18 years in the Illinois State Penitentiary. Defendant appeals.

The issues presented for review are: (1) whether defendant's conviction should be reversed because the prosecutor allegedly committed the following errors during closing argument: the prosecutor argued matters not in evidence; the prosecutor commented on defendant's failure to testify; the prosecutor vouched for the credibility of witnesses; (2) whether the rebuttal testimony offered for impeachment was improper and bore directly on the question of defendant's guilt or innocence; and (3) whether the trial court erred in refusing to strike the testimony of the complaining witness regarding prior acts of intercourse.

We affirm.

The following facts were adduced at trial:

On December 24, 1973, 11-year-old Yvonne Dykes lived with defendant (her father), her mother and her younger brother in an apartment on the second floor of a six unit building.

Yvonne Dykes testified that at approximately 12:45 p.m. on December 24, 1973, her father ordered her to go downstairs and clean the apartment of Billie Sue Lewis, a neighbor and friend of the family. Yvonne proceeded to Billie Sue's apartment and commenced cleaning the kitchen. Approximately 30 minutes later defendant entered Billie Sue's apartment and ordered Yvonne to come into the living room. Yvonne entered the room and defendant ordered her to remove her pants and lie on the couch. Defendant removed his pants and had intercourse with Yvonne. Defendant then instructed her not to tell anyone about the incident.

John Dykes, Jr., Yvonne's brother, testified that on December 24, 1973, defendant left the Dykes' apartment at 9:45 a.m. and did not return until 2:30 p.m. that afternoon. John, Jr., stated that he was with Yvonne at all times on December 24, and they both remained in their apartment until 1:30 p.m. Then they proceeded downstairs to Billie Sue's apartment and remained there until 3 p.m. At that time they went upstairs to get money from defendant to go shopping. When they returned from the store, defendant spanked Yvonne and then hit her in the face because "she lost some money" and did not buy "chitterlings" at the grocery store. John stated that he, Yvonne and Billie Sue then went back to the store where they met Mrs. Dykes.

Billie Sue Lewis testified that on December 24, 1973, she returned home from work at 11:45 a.m. She remembered locking the doors when she left for work and stated that to her knowledge no one other than herself had keys to her apartment. She remained alone in her apartment until John, Jr., and Yvonne came downstairs at 2:30 p.m. that afternoon. The three of them went upstairs to the Dykes' apartment, got money from defendant and then went shopping. Billie Sue stated that after returning home, defendant spanked Yvonne "once on the fanny" for spending too much money, but she never saw defendant hit Yvonne in the face.

Mrs. Dykes, the wife of defendant, testified that on December 24, 1973, Yvonne told her that defendant spanked Yvonne but did not tell her that defendant had intercourse with her. Yvonne testified that on December 25, 1973, she told her mother that defendant "had been messing with me," and Mrs. Dykes promised "to take care of it."

Mrs. Dykes stated that on December 27, while at work, she received a phone call from Yvonne pleading with her to come home and take Yvonne to her grandmother's house. Mrs. Dykes took Yvonne to the "L" station intending to proceed to her mother's home. Mrs. Dykes stated that they got off the train at the Lawrence Avenue station and went into an adjoining restaurant to phone Mrs. Dykes' mother. While in the restaurant, Yvonne told her mother that "I thought my daddy was in my bedroom last night," and Mrs. Dykes called police. Officer Podborny testified that he proceeded to the Berwyn "L" station where Yvonne and Mrs. Dykes told him that defendant had raped Yvonne on December 24, 1973. Officer Podborny took Yvonne and Mrs. Dykes to the police station to be interviewed and then to Ravenswood Hospital where Yvonne was examined by Dr. Ghan.

Dr. Ghan testified that she examined Yvonne in the emergency room at Ravenswood Hospital on December 27, 1973. During the examination Yvonne told Dr. Ghan that she had been raped by her father two or three days earlier. The doctor testified that Yvonne did not have any tenderness or physical injuries, but that she did have an "old ruptured hymen." When asked if a ruptured hymen could be caused by a fall, Dr. Ghan stated that the hymen becomes ruptured primarily through sexual intercourse, and that it would be unusual for a girl of Yvonne's age to have a ruptured hymen caused by a fall. Dr. Ghan testified she did not look for any sperm because the rape occurred two to three days prior to the examination, and the sperm would only remain for 24 to 48 hours. The doctor also stated that it was impossible to determine the age of a ruptured hymen.

Mrs. Dykes testified that Yvonne told Dr. Ghan only "that she thought her father was in her bedroom" that night. Mrs. Dykes also stated that Dr. Ghan told her that "she didn't find nothing."

Yvonne also testified that defendant had sexual intercourse with her prior to December 24, 1973, the first time when she was eight or nine years old. She was able to recall only one other incident of intercourse with defendant, which allegedly occurred during the first week of November 1973. Yvonne stated that after each act of intercourse with defendant he would threaten to whip her if she told anyone, but that after each incident she told her mother that defendant "was messing with me." After she told her mother of these incidents, her mother would leave defendant, taking Yvonne and John, Jr., to the house of Mrs. Dykes' mother.

Mrs. Dykes further testified that in October 1973 Yvonne also complained that she thought defendant had been in her bedroom. At that time Mrs. Dykes summoned the police, and Yvonne told the investigating officer that she thought defendant was in her bedroom the previous night. Mrs. Dykes stated that the police officer advised that Yvonne needed psychiatric ...


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